An Orange County, Calif., jury verdict rejecting a negligence claim against a remediation company is the latest result from a new variety of mold cases that are being filed, a defense attorney said.

In the case–E.H. Webb Blessley and Donna L. Blessley v. Fire Insurance Exchange; Orange Restoration dba ServiceMaster AAA Restoration, heard in the Orange County Superior Court–plaintiffs H. Webb Blessley and Donna Blessley filed suit against ServiceMaster AAA Restoration, a dry-out/mold remediation company that had performed work on their home, alleging negligence.

The plaintiffs said they discovered water damage and mold after the remediation company had completed its work.

They also complained against the first-party insurance carrier, Fire Insurance Exchange, for breach of the implied covenant of good faith and fair dealing and breach of contract. The plaintiffs attempted to argue that the mold remediation company was an agent of their first-party insurance carrier.

The trial, presided over by Judge Kirk Nakamura, lasted two months.

Victoria Ersoff, a partner with Wood, Smith, Henning & Berman, said the case is significant because she has seen mold cases trending away from traditional construction defect litigation involving bodily injury claims, and toward cases against contractors for failure to properly remediate.

Previously, she said, plaintiffs would argue that water intrusion through the roof or windows caused toxic mold to form, which led to a range of health complications.

But recent cases, she noted, do not involve bodily injury. Instead, a homeowner will have a house fixed and then sue the contractor for failure to properly remediate.

Ms. Ersoff said mold litigation may have evolved to this point because the bodily injury claims were hard to prove at trial. She said medical science did not support many of the claims, and noted that she has never lost a mold bodily injury case.

Even with this newer tactic, though, Ms. Ersoff said mold litigation is not increasing the way it did a few years ago. Back then, she said, big law firms took on mold cases, whereas now, it is smaller, random firms.

In the Blessley case, Ms. Ersoff said the plaintiffs, who had been "vigilant" about documenting damage to their home with video and photos, could produce no documentation of damage relating to their charges. Additionally, Ms. Ersoff said it was discovered during trial that the house had sustained previous heavy water damage despite plaintiffs' claims that there were no prior incidents of flooding.

Jim Keathley, an attorney representing the plaintiffs, did not return a phone call.

Special Reports /

Calif. Mold Case Seen By Defense As Growing Trend

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